S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   11038
 
                           I N  A S S E M B L Y
 
                              October 7, 2020
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Epstein) --
   read once and referred to the Committee on Judiciary
 
 AN ACT to amend the family court act, in  relation  to  eliminating  the
   ability  of  a  court  to commit a respondent to jail as a penalty for
   violation of a support order; and to repeal certain provisions of such
   law relating thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  3 of section 454 of the family court act, as
 amended by chapter 892 of the laws of 1986, paragraph (b) as  added  and
 paragraph  (c)  as  relettered  by  chapter  699 of the laws of 1996, is
 amended to read as follows:
   3. Upon a finding by the court that a respondent has willfully  failed
 to obey any lawful order of support, the court shall order respondent to
 pay  counsel  fees  to  the attorney representing petitioner pursuant to
 section four hundred thirty-eight of this act and may in addition to  or
 in lieu of any or all of the powers conferred in subdivision two of this
 section or any other section of law:
   (a)  [commit  the  respondent  to  jail  for  a term not to exceed six
 months.  For purposes of this subdivision, failure to  pay  support,  as
 ordered,  shall  constitute prima facie evidence of a willful violation.
 Such commitment may be served upon certain specified days  or  parts  of
 days  as the court may direct, and the court may, at any time within the
 term of such sentence, revoke such suspension and commit the  respondent
 for  the remainder of the original sentence, or suspend the remainder of
 such sentence. Such commitment does not prevent the  court  from  subse-
 quently  committing the respondent for failure thereafter to comply with
 any such order; or
   (b)] require the respondent to participate in a rehabilitative program
 if the  court  determines  that  such  participation  would  assist  the
 respondent  in complying with such order of support and access to such a
 program is available. Such rehabilitative programs  shall  include,  but
 not  be limited to, work preparation and skill programs, non-residential
 alcohol and substance abuse programs and educational programs; or
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD11825-01-9

 A. 11038                            2
 
   [(c)] (B) place the respondent on probation under such  conditions  as
 the  court  may  determine  and in accordance with the provisions of the
 criminal procedure law.
   § 2. Section 455 of the family court act is REPEALED.
   §  3.  Subdivision  (a)  of  section  439  of the family court act, as
 amended by section 1 of chapter 468 of the laws of 2012, is  amended  to
 read as follows:
   (a) The chief administrator of the courts shall provide, in accordance
 with  subdivision  (f)  of this section, for the appointment of a suffi-
 cient number of  support  magistrates  to  hear  and  determine  support
 proceedings.  Except  as hereinafter provided, support magistrates shall
 be empowered to hear, determine and grant any relief within  the  powers
 of  the  court  in  any  proceeding  under  this article, articles five,
 five-A, and five-B and sections two hundred thirty-four and two  hundred
 thirty-five  of this act, and objections raised pursuant to section five
 thousand two hundred forty-one of the  civil  practice  law  and  rules.
 Support  magistrates shall not be empowered to hear, determine and grant
 any relief with respect to [issues specified  in  section  four  hundred
 fifty-five  of  this  article,]  issues of contested paternity involving
 claims of equitable estoppel, custody, visitation  including  visitation
 as  a  defense,  and orders of protection or exclusive possession of the
 home, which shall be referred to a judge as provided in subdivision  (b)
 or (c) of this section. Where an order of filiation is issued by a judge
 in  a  paternity proceeding and child support is in issue, the judge, or
 support magistrate upon referral from the judge, shall be authorized  to
 immediately make a temporary or final order of support, as applicable. A
 support  magistrate  shall have the authority to hear and decide motions
 and issue summonses and subpoenas to produce persons pursuant to section
 one hundred fifty-three of this act, hear  and  decide  proceedings  and
 issue  any  order authorized by subdivision (g) of section five thousand
 two hundred forty-one of the civil practice law and rules, issue subpoe-
 nas to produce prisoners pursuant to section two thousand three  hundred
 two  of  the  civil practice law and rules and make a determination that
 any person before the support magistrate is in violation of an order  of
 the  court  as  authorized  by section one hundred fifty-six of this act
 subject to confirmation by a judge of the court  who  shall  impose  any
 punishment  for  such violation as provided by law. A determination by a
 support magistrate that a person is in willful  violation  of  an  order
 under subdivision three of section four hundred fifty-four of this arti-
 cle  and that recommends commitment shall be transmitted to the parties,
 accompanied by findings of fact, but the  determination  shall  have  no
 force and effect until confirmed by a judge of the court.
   §  4.  Subdivision  (a)  of  section  439  of the family court act, as
 amended by section 2 of chapter 468 of the laws of 2012, is  amended  to
 read as follows:
   (a) The chief administrator of the courts shall provide, in accordance
 with  subdivision  (f)  of this section, for the appointment of a suffi-
 cient number of  support  magistrates  to  hear  and  determine  support
 proceedings.  Except  as hereinafter provided, support magistrates shall
 be empowered to hear, determine and grant any relief within  the  powers
 of  the  court  in  any  proceeding  under  this article, articles five,
 five-A, and five-B and sections two hundred thirty-four and two  hundred
 thirty-five  of this act, and objections raised pursuant to section five
 thousand two hundred forty-one of the  civil  practice  law  and  rules.
 Support  magistrates shall not be empowered to hear, determine and grant
 any relief with respect to [issues specified  in  section  four  hundred

 A. 11038                            3

 fifty-five  of  this  article,]  issues of contested paternity involving
 claims of equitable estoppel, custody, visitation  including  visitation
 as  a  defense,  and orders of protection or exclusive possession of the
 home,  which shall be referred to a judge as provided in subdivision (b)
 or (c) of this section. Where an order of filiation is issued by a judge
 in a paternity proceeding and child support is in issue, the  judge,  or
 support  magistrate upon referral from the judge, shall be authorized to
 immediately make a temporary or final order of support, as applicable. A
 support magistrate shall have the authority to hear and  decide  motions
 and issue summonses and subpoenas to produce persons pursuant to section
 one  hundred  fifty-three  of  this act, hear and decide proceedings and
 issue any order authorized by subdivision (g) of section  five  thousand
 two hundred forty-one of the civil practice law and rules, issue subpoe-
 nas  to produce prisoners pursuant to section two thousand three hundred
 two of the civil practice law and rules and make  a  determination  that
 any  person before the support magistrate is in violation of an order of
 the court as authorized by section one hundred  fifty-six  of  this  act
 subject  to  confirmation  by  a judge of the court who shall impose any
 punishment for such violation as provided by law. A determination  by  a
 support  magistrate  that  a  person is in willful violation of an order
 under subdivision three of section four hundred fifty-four of this arti-
 cle and that recommends commitment shall be transmitted to the  parties,
 accompanied  by  findings  of  fact, but the determination shall have no
 force and effect until confirmed by a judge of the court.
   § 5. Subdivision (c) of section  439  of  the  family  court  act,  as
 amended  by  chapter  576  of  the  laws  of 2005, is amended to read as
 follows:
   (c) The support magistrate, in any proceeding in which [issues  speci-
 fied  in  section  four  hundred  fifty-five  of this act, or] issues of
 custody, visitation,  including  visitation  as  a  defense,  orders  of
 protection  or  exclusive possession of the home are present or in which
 paternity is contested on the grounds of equitable estoppel, shall  make
 a  temporary  order of support and refer the proceeding to a judge. Upon
 determination of such issue by a judge,  the  judge  may  make  a  final
 determination of the issue of support, or immediately refer the proceed-
 ing  to  a  support  magistrate  for further proceedings regarding child
 support or other matters within the authority of the support magistrate.
   § 6. This act shall take effect on the thirtieth day  after  it  shall
 have  become  a  law, provided that the amendments to subdivision (a) of
 section 439 of the family court act made by section three  of  this  act
 shall  be  subject  to  the expiration and reversion of such subdivision
 pursuant to subdivision 19 of section 246 of chapter 81 of the  laws  of
 1995  as  amended, when upon such date the provisions of section four of
 this act shall take effect.